Several federal circuits are tackling the issue whether the Government’s authority to search persons and property at the border, without a warrant, and often, without any suspicion, includes individuals’ electronic devices. The Fourth and Ninth Circuits have held that the Fourth Amendment requires at least reasonable suspicion for forensic searches of electronic devices at the U.S. Border or equivalent. However, on May 23, 2018, the Eleventh Circuit, in United States v. Touset, concluded that a reasonable suspicion is not required to perform a forensic search of an electronic device at the U.S. border, creating a circuit split.

The Supreme Court recognized a right to technological privacy in Riley v. California holding that a warrantless search and seizure of contents of a cellphone during an arrest violates the Fourth Amendment. However, in United States v. Vergara a divided Eleventh Circuit panel interpreted the scope of Riley as limited to the search-incident-to-arrest exception. The dissent argued that Riley’s holding applies more broadly, opining that concerns raised in Riley apply to both arrestees and travelers.

The Fourth and Ninth Circuits ground their reasonable suspicion for forensic device searches by distinguishing between routine and non-routine searches. The Fourth Circuit stated that “border searches of luggage, outer clothing, and personal effects consistently are treated as routine, while searches that are most invasive of privacy—strip searches, alimentary-canal searches, x-rays, and the like—are deemed nonroutine and permitted only with reasonable suspicion.” Given the sheer amount of personal data that electronic devices can carry, the Fourth and Ninth Circuits characterize forensic searches as non-routine, thus requiring at least a reasonable suspicion to do so. However, the Fourth Circuit expressly noted that cursory examinations of electronic devices at the border are routine, and do not require reasonable suspicion.

The Eleventh Circuit rejected the arguments above, ruling that “[t]he Supreme Court has never required reasonable suspicion for a search of property at the border, however non-routine and intrusive, and neither have we.” Moreover, the Court was unwilling to distinguish between different types of property, stating that “it does not make sense to say that electronic devices should receive special treatment because so many people now own them or because they can store vast quantities of records or effects.”

However, in today’s digital age the Eleventh Circuit’s reasoning is suspect. The capabilities of today’s technology allow individuals to store every personal file they wish on their devices. Unlike a suitcase where you choose what to include, with electronic devices you must decide what to exclude. Moreover, today, information freely flows across international borders via the internet, and so sending the contents of your laptop over the border is easily done using the internet. Thus, the argument for searching electronic devices weakens if searches are justified in keeping contraband out of the United States.

In Touset, The Eleventh Circuit acknowledged its split with the Fourth and Ninth Circuits, but was nonetheless unpersuaded. Soon to add to the split is the First Circuit, as a District Court in Massachusetts has recently allowed a Fourth Amendment challenge to warrantless device searches at the border to move forward. It’s evident that this will not resolve itself and will likely require the Supreme Court, or Congress, to resolve the issue.

Ben Breckler

 

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